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Classified Information Plays Central Role in Both 9/11, WikiLeaks Cases

By Donna MilesAmerican Forces Press Service

FORT MEADE, Md., Oct. 18, 2012  Pretrial hearings for two major court cases – one involving the alleged perpetrators behind the 9/11 terror attacks and the other involving the soldier charged with the largest intelligence leak in U.S. history – are converging this week as attorneys operating in two very different legal systems focus on the issue of classified information in the courtroom.

The pre-trial hearing for Khalid Sheik Mohammed, who has confessed to planning the 9/11 attacks “from A to Z,” and four others who allegedly trained, financed or arranged transportation for the 19 hijackers entered its fourth day today at Naval Air Station Guantanamo Bay, Cuba.

Mohammed’s codefendants in the case are his nephew, Ali Abdul Aziz Ali; Walid Muhammad Salih Mubarak bin Attash, charged with selecting and training some of the hijackers; and Ramzi Binalshibh and Mustafa Ahmed Adam al Hawsawi, accused with helping finance the attacks.

Meanwhile, here at Fort Meade, the second day of pre-trial hearings continued for Army Pfc. Bradley Manning. He is an Army intelligence specialist accused of downloading and transmitting classified information to the whistle-blowing group WikiLeaks while he was deployed to Iraq.

The legal systems being used to prosecute these cases are significantly different.

Manning, as a member of the U.S. military, is subject to the Uniformed Code of Military Justice. This system has roots dating back to the Revolutionary War, and is intended to promote good order and discipline in the armed forces. The 9/11 defendants, on the other hand, will be tried through a military tribunal governed by the Military Commissions Act of 2009.

Manning is charged with aiding the enemy; wrongfully causing intelligence to be published on the Internet, knowing that it is accessible to the enemy; theft of public property or records; transmitting defense information; and fraud and related activity in connection with computers. The charges against him also include violation of Army Regulations 25-2 “Information Assurance” and 380-5 “Department of the Army Information Security Program.”

If found guilty, Manning could receive up to life in prison. He also could be reduced to E-1, the lowest enlisted grade, and face a total forfeiture of all pay and allowances and dishonorable discharge.

Military commissions, on the other hand, apply to “an alien unprivileged enemy belligerent who has engaged in hostilities, or who has purposefully and materially supported hostilities against the United States, its coalition partners or was a part of al Qaeda.”

The 9/11 defendants were captured in Pakistan between 2002 and 2003 and have been confined at Guantanamo Bay since 2006.

They were charged during their arraignment in May with terrorism, conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft. If found guilty, they could receive the death penalty.

A casual peek into the courtrooms gives a glimpse into one of the most obvious differences between the UCMJ and military commission processes.

By law, Manning is not required to attend proceedings regarding his case, but a military lawyer with more than 20 years experience said on background that he’s never seen a service member not attend. Photographers outside the courtroom yesterday captured images of Manning being escorted from the courtroom in his Army dress blue uniform with gold-colored private first class rank on his sleeves.

Army Col. James Pohl, the judge presiding over the 9/11 case, ruled earlier this week that the defendants don’t have to attend their court sessions, as long as they sign a waiver form each morning they choose to skip. When they do elect to attend, they can dress as they choose – as long as their attire doesn’t include U.S. military uniform items or prisoner garb in a color that would misrepresent their security status at the detention facility.

Mohammed quickly took advantage of both rulings. He opted out of court the first day after Pohl ruled that he could – the day the judge also took up the wardrobe issue. Yesterday, Mohammed initially elected not to attend the third day of pre-trial hearings, then showed up later that morning wearing a camouflage vest over his traditional white tunic.

Most of the distinctions between the UCMJ and military commission legal processes are less obvious to those without legal training, and the discussion could fill textbooks. One big question being debated during the 9/11 hearings, for example, is whether the defendants have constitutional rights.

However, a central concern in both the Manning and 9/11 cases is the issue of how classified information is dealt with in court.

Today, the fourth day of pretrial hearings for the 9/11 suspects continued to focus on the balance between protecting classified information that, if made public, could jeopardize U.S. national security, and the constitutional mandate that court proceedings be open to the public.

The prosecution and U.S. government lawyers say protections are needed to prosecute the case without disclosing classified information that would threaten U.S. national security.

In contrast, the defendant’s defense teams accused prosecutors of using an overly broad banner of national security to safeguard information vital to providing a solid defense. Echoing them were lawyers representing the American Civil Liberties Union and media groups, who said the government wants to squelch information the public deserves to know.

Pohl is expected to rule this week on a protective order the prosecution has requested to spell out what provisions are protected and which ones aren’t.

A central issue in both the 9/11 and Manning cases involves information regarding the defendants’ detention. For Manning, that involves time when he was allegedly mistreated while being held in a Marine Corps brig at Quantico, Va. Of primary concern regarding the 9/11 defendants is time they spent in the hands of the CIA before being transferred to Guantanamo Bay.

Both cases also require hammering out details about witnesses who can be called. In Manning’s case, for example, some witnesses’ names have been redacted from the motion and are considered to be classified as secret. At Guantanamo Bay, the issue involves whether the defense is required to give the prosecution a heads up about what testimony the witnesses it calls are likely to provide –something the government would weigh in deciding whether to fly a witness to the court.

Meanwhile, Army Col. Denise Lind, the judge hearing he Manning case, ordered the prosecution yesterday to release hundreds of emails about his incarceration to the defense team. Lind’s ruling covered all but 12 of about 600 emails regarding a range of issues: from Manning’s visitor list and provisions to ensure he had proper uniforms to plans for responding to protesters and media queries. These emails, added to ones already in the possession of Manning’s defense attorneys, bring to 1,200 the total number of emails that will presumably be used to argue that their client was treated illegally.

Lind also issued rulings that would allow parts of CIA, FBI and Department of Homeland Security documents used in the case to be redacted.

Ironically, the only concrete decision made during the 9/11 hearing today had nothing to do with the court proceedings. Rather, it involved the cleanup of administrative space the defense teams have complained are plagued with rat droppings and mold. Although base officials had declared them safe, a defense lawyer told Pohl the space is making her staff sick.

A Navy officer promised a comprehensive cleanup before the next series of pre-trial hearings, assuring the court that occupational health experts will verify that they they’re up to standards.